In order to sustain the charge, it is necessary to assume as matter of law that the defendant’s horses would have committed the alleged trespass, notwithstanding the plaintiff’s portion of the fence had been such as a good husbandman ought to keep.
This assumption we are not authorized to make.
"The plaintiff below having undertaken to keep this part •of the fence in repair, and having failed to do so, must be -regarded as contributing to his own injury, unless it be ¿shown as matter of fact that the alleged trespass would have been committed if the fence had been such as a good husbandman ought to keep, and whether such fact existed, should have been left to the jury to determine.
Leave granted; judgments reversed, and cause remanded.